Antitrust’s Conservative Future

Confronting the tyranny of concentrated economic power

Mark Meador, Commissioner of the Federal Trade Commission

Among the most needful projects for contemporary conservatives is a critical reexamination of our view and treatment of power—both economic and political. Despite our unanimity about the threat unchecked political power poses to individual liberty and self-governance, there has been a willful blindness to how the acquisition and maintenance of economic power manifests in equally problematic ways. When economic relationships are shaped not by free exchange, but by coercion and exclusion, the distinction between private and public power erodes.

Conservatives must reaffirm that concentrated economic power is just as dangerous as concentrated political power, and that rightly ordered political power is a necessary and appropriate tool for restraining excessive economic power and preserving liberty.

Conservatives must reaffirm that concentrated economic power is just as dangerous as concentrated political power, and that rightly ordered political power is a necessary and appropriate tool for restraining excessive economic power and preserving liberty. This approach requires moving beyond the modern tendency to conflate free markets with the unsupervised exercise of private power.

This observation calls for a reconsideration of what the conservative approach to antitrust should look like. The antitrust laws reflect the fundamental American values of free enterprise and economic competition. A free market, properly understood, is a system of economic order that is rooted in fair dealing and voluntary exchange. The antitrust laws are the primary mechanism for ensuring economic power does not calcify into anarchistic private tyranny. In short, free markets are not self-perpetuating—they require law enforcement to protect and maintain them.

For these reasons, conservatives should reject a laissez-faire or libertarian approach to antitrust law that inverts first principles, rejects the responsibilities of governance, and reflexively turns a blind eye to efforts to accumulate private power at any cost. We must recognize that antitrust law’s endorsement of free and open markets is a legal and moral choice—not just an economic choice—that is rooted in our national commitment to human flourishing and the rule of law.

Conservatism & Power

Big is bad. When referring to the size of the government or political power, this statement is not only uncontroversial among conservatives, it is axiomatic. It is the predominant force behind our support for the Constitution’s ingenious system of checks and balances, federalism, and the overall preference for small government. Yet, for some reason, when concern about bigness is applied to private businesses or economic power, it suddenly becomes taboo. This is irrational and must change.

It is not that bigness offers no benefits at all—economies of scale are real. But size and the power that often accompanies it do in fact warrant greater scrutiny and concern, particularly of the mechanisms by which that power is acquired and entrenched. To insist that just because a business is economically powerful does not mean it will behave badly is akin to expressing surprise that a gambler would place a risky bet after you gave him unlimited chips. Or that a government with unrestrained power won’t necessarily infringe upon the rights of its citizens. 

Speaking on the Senate floor in support of the landmark antitrust bill that would come to bear his name, Republican Senator John Sherman said,

If the concentrated powers of this combination are entrusted to a single man, it is a kingly prerogative, inconsistent with our form of government, and should be subject to the strong resistance of the State and national authorities. If anything is wrong, this is wrong. If we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessaries of life. If we would not submit to an emperor we should not submit to an autocrat of trade, with power to prevent competition and to fix the price of any commodity.

By 1908, support for antitrust enforcement was firmly embedded into the Republican platform. That view remained part of the DNA of the Republican Party, even after the passage of the Clayton Antitrust Act and Federal Trade Commission Act. Calvin Coolidge observed that, “If monopolies were permitted, a few men in key positions would soon control our economic and probably our political destinies. Open opportunity would be gone. About the only remedy would be a revolution.”

And yet, despite this intellectual heritage, the common refrain from many on the Right has been that economic and political power are fundamentally different. The usual objections are that corporate power does not pose a threat to liberty because businesses lack the state’s monopoly on force, economic transactions are purely voluntary, and corporations have no power to determine political liberties or rights.

That a corporation can’t compel anything at the point of a gun is cold comfort when it can cut you off from commerce, speech, and even your bank account. Human flourishing can be crushed by much less than a standing army.

The 21st century has disproven each of these objections. That a corporation can’t compel anything at the point of a gun is cold comfort when it can cut you off from commerce, speech, and even your bank account. Human flourishing can be crushed by much less than a standing army. Likewise, economic transactions with a monopolist—or dominant competitors acting in concert—are anything but voluntary; by definition there is no meaningful alternative, and the terms imposed can be coercive. And while all of this does not technically alter the rights and liberties secured or recognized by the Constitution, when the state allows others to infringe upon what it itself has acknowledged as sacred it renders the promise hollow.

Senator Mike Lee put it concisely in a 2021 address to the Federalist Society:

It should be intuitive for the conservative that freedom from state tyranny has little worth if the state abandons you to the whims of monopolists. We must reject the cold and shallow conception of liberty that would congratulate a man for throwing off the shackles of big government only to be encumbered with those of big business.

President Trump has called for strong antitrust enforcement where there is “too much concentration of power in the hands of too few.” He has lamented that, “Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech!” In 2016, President Trump directly challenged “powerful special interests” that he said had “rigged our political and economic system for their exclusive benefit,” declaring that he had “joined the political arena so that the powerful can no longer beat up on people that cannot defend themselves.” 

Conservatives must once again reject libertarianism’s narrow conception of human freedom as the mere absence of government, while putting their heads in the sand when asked about how companies acquire, entrench, and maintain their economic power. We must instead acknowledge that tyranny can come from monopolies other than force, that freedom and free markets are not self-sustaining, and that our leaders swore an oath to defend the people from enemies foreign and domestic, whether armed with battalions or bankers.

We must instead acknowledge that tyranny can come from monopolies other than force, that freedom and free markets are not self-sustaining, and that our leaders swore an oath to defend the people from enemies foreign and domestic, whether armed with battalions or bankers.

The Aims of Antitrust

Antitrust law exists to protect the people from the dangers of concentrated economic power, chiefly through two aims: diluting economic power and protecting competition. The enduring philosophical debate within antitrust law is over which of these aims should take priority, and by extension over what “competition” really means. 

American antitrust policy over the last century has largely been a battle between two competing visions. On one side are progressives, who argue that diluting economic power is the primary aim of antitrust and thus advocate for strong structural presumptions and bright-line rules, largely viewing any attempts at nuance in the analysis to be an excuse for concentration. 

Despite the current emphasis on Justice Louis Brandeis, modern progressives’ support for a structuralist view that entrusts courts with unrestricted discretion to “decentralize” industries is better captured in the jurisprudence of Justice William Douglas.

Douglas lamented the “problem of bigness” and that “size can become a menace,” which was the dominant approach in the mid-20th century. Under this approach, the idea of competition is inextricably tied to market structure, meaning the number and size of competitors. The fewer and larger the competitors, the less competition, the thinking goes. Thus, the Sherman and Clayton Acts’ mandates to protect competition are viewed as legislative directives to prevent concentration above all else.

This approach views antitrust law not just as an economic project, but also, if not more so, as a political project. In endorsing the view that the antitrust laws should entrust more power and discretion into the hands of government officials, former Democratic chairman of the Federal Trade Commission Robert Pitofsky, despite acknowledging “that conflicts between political and economic goals do arise,” explicitly called on courts applying the antitrust laws to take political values into account. This included “the fear that excessive concentration of economic power will foster antidemocratic political pressures, the desire to reduce the range of private discretion by a few in order to enhance individual freedom, and the fear that increased governmental intrusion will become necessary if the economy is dominated by the few.”

Modern progressives advocate for far more than a simple preference for bright-line rules that favor deconcentration. Their vision of antitrust law is closer to the “public interest” standard that many regulatory agencies employ in various industries—except that, in place of experts removable by a democratically elected president, it would give to unelected lifetime-appointed judges oversight of the entire economy. The past few months have already shown us how badly that can go.

At the other end of the spectrum, the leading approach to antitrust policy on the Right has come from the Chicago School, which prioritizes economic efficiency, usually assessed by price and output. Its most famous proponent was Judge Bork, who laid out the consumer welfare standard through a series of law review articles and his 1978 book, The Antitrust Paradox.

Bork’s central contention in The Antitrust Paradox was that the overarching purpose of antitrust law, and the definition of competition itself, is maximizing consumer welfare. Bork argued that the legislative history of the antitrust laws simply did not support the view that that they were meant to serve any other purpose, and that the application of the antitrust laws in the mid-20th century had actually done more harm than good for American consumers because it had prevented mergers and conduct that would have lowered prices or increased output by increasing the economic efficiency of market participants. 

More importantly—and, as I’ll discuss shortly, more persuasively—Bork also argued that consumer welfare was the only constitutionally appropriate goal for antitrust law. By placing “intensely political and legislative decisions in Congress instead of the courts,” Bork wrote, the consumer welfare standard allows judges to apply the antitrust laws in a manner consistent with the separation of powers. 

Simply put, the Constitution does not permit judges to legislate from the bench by allocating—redistributing—economic benefits among competing constituencies in the pursuit of some political goal. Such power is reserved for Congress alone.

Robert Bork: Brilliant Lawyer, Failed Historian

The approaches of Bork and the modern progressives have this in common: Each identifies something deeply true and important in antitrust law but is ultimately hobbled by a fatal flaw.

Bork’s observation that the insertion of explicit political values into the antitrust analysis performed by courts is unconstitutional is unassailable. It rests on a foundational legal principle for American conservatives, that the role of the judge is to say what the law is, not what it should be. Bork, in reference to political concerns in antitrust analysis requiring judges to weigh competing social values, something he points out “is essentially a legislative task.”

For Bork, consumer welfare serves as a neutral principle, or “common denominator,” by which judges may assess whether a particular merger or course of conduct harms competition. 

However, conservative legal academic George Priest has pointed out that there are serious deficiencies in Bork’s scholarship on the legislative history of the Sherman Act. The claim that “the promotion of consumer welfare was the original intent of Congress … remains highly controversial. ​​Few in the Chicago school accepted this interpretation.” 

Antitrust scholar Herbert Hovenkamp is even more blunt: “Not a single statement in the legislative history comes close to stating the conclusions that Bork drew.”

At a recent Federalist Society event, Prof. Todd Zywicki observed, “Bork may have been a brilliant lawyer and a great man, but I think the subsequent research has suggested he wasn’t a perfectly accurate historian in terms of the legislative history about consumer welfare.” Antitrust scholar Herbert Hovenkamp is even more blunt: “Not a single statement in the legislative history comes close to stating the conclusions that Bork drew.”

Bork’s error lies in his obsession with economic efficiency. He notes there are two kinds of efficiency: allocative and productive. The former seeks the most profitable investment of capital across the economy, while the latter seeks to use invested capital as efficiently as possible by lowering costs and maximizing output within a specific firm. As Bork put it:

These two types of efficiency make up the overall efficiency that determines the level of our society’s wealth, or consumer welfare. The whole task of antitrust can be summed up as the effort to improve allocative efficiency without impairing productive efficiency so greatly as to produce either no gain or a net loss in consumer welfare.

The problem for Bork is that the legislative and historical records yield almost no evidence that the drafters or supporters of the Sherman Antitrust Act were concerned with the efficient allocation of resources across the national economy, let alone that they would have wanted or expected judges to declare by judicial fiat what practices maximize total economic welfare. Prof. Robert Lande points out that the very concept of “allocative efficiency” was barely in its incipiency in 1890, and it is nearly impossible that most economists—let alone any legislator—at the time even knew what it was.

This point is clear from any review of the historical record. The public of the late 19^th century was largely concerned with the overall power of the trusts of their time and the trusts’ ability to unfairly leverage their economic power. William Letwin has described the dynamic well:

Trusts, it was said, threatened liberty, because they corrupted civil servants and bribed legislators… they drove out competitors by lowering prices, victimized consumers by raising prices, defrauded investors by watering stocks, put laborers out of work by closing down plants, and somehow or other abused everyone. The kind of remedy that the public desired was clear enough: it wanted a law to destroy the power of the trusts.

Lande likewise argues that Congress, in responding to this sentiment, was particularly concerned about the ability of trusts to extract higher prices from consumers, and therefore intended the Sherman Act to prevent “‘unfair’ transfers of wealth from consumers to firms with market power.” He states that while Bork was “correct to conclude that Congress was concerned with ‘consumer welfare,’ he incorrectly restricts the definition of this key term to economic efficiency.” Rather than the overall allocation of resources, the drafters of the Sherman Antitrust Act were primarily concerned with the financial effects on consumers.

And that only concerns the Sherman Antitrust Act, upon which Bork based the bulk of his historical argument. In his section on the legislative history of the antitrust laws, Bork devotes only a single paragraph to most of the subsequent antitrust laws passed by Congress. The Clayton Antitrust Act (1914), the Federal Trade Commission Act (1914), and the Celler-Kefauver Act (1950), the last of which he refuses even to name, receive only passing references, accompanied by unsupported assertions that these statutes have the same goals as those he imputed to the Sherman Act. 

It’s not hard to see why. Every substantive antitrust law passed after the Sherman Act was written to strengthen antitrust enforcement. In the debate over the Clayton Act, Republican Senator Albert Cummins was unequivocal as to why he supported updating the antitrust laws:

Every substantive antitrust law passed after the Sherman Act was written to strengthen antitrust enforcement.

Why, of course a man may exercise autocratic and absolute power wisely. He may render the people over whom he rules the greatest possible service. His government may be a better government than a government of the people. He may enact better laws, and he may enforce them more efficiently and justly than we may make and enforce in a democracy or in a republic. We have discovered, however, that power of that kind is likely to be abused and that in the great majority of instances it is safer to trust the people themselves rather than a single ruler. Therefore we adhere to democracy and adhere to the republic. Just so in this respect. Here and there there may be a case in which the monarchy of business is vastly better, but, taking it as a whole, the republic, the democracy, is as sound in business as it is in politics.

Here we see not a defense of allocative efficiency, but rather a firm insistence that the disaggregation of economic power is far more important to the country than efficiency in business. Cummins’ remarks directly echo those of Sen. Sherman 24 years earlier when he compared monopoly power to monarchical tyranny: “inconsistent with our form of government.” 

Prof. David Millon, who undertook a comprehensive review of the philosophical underpinnings and legislative history behind the antitrust laws, concluded, “Congress in 1890 was concerned about power, not efficiency. The legislators confronted the concentration crisis from the perspective of an ideological tradition that equated excessive economic power with political corruption as well as oppression of competitors and consumers.”

Looking at the historical record, productive efficiency is acknowledged but was far from the main driver; allocative efficiency does not enter the discussion at all. In a sense, it is true that Congress’s intent with the antitrust laws was to promote consumer welfare. It is just that Congress’s vision of consumer welfare does not align with Judge Bork’s.

In a sense, it is true that Congress’s intent with the antitrust laws was to promote consumer welfare. It is just that Congress’s vision of consumer welfare does not align with Judge Bork’s.

Where Progressives & Conservatives Agree

When it comes to the purposes behind the antitrust laws, it turns out that progressives perceived something that Bork either missed or willfully ignored—which is ironic because those purposes are fundamentally conservative in nature. 

Two of the most infamous passages in antitrust law reflect deeply conservative values. Justice Rufus Peckham is regularly derided by antitrust scholars and practitioners alike for writing in Trans-Missouri Freight that, while large firms may be able to attain more efficient operations,

Trade or commerce under those circumstances may nevertheless be badly and unfortunately restrained by driving out of business the small dealers and worthy men whose lives have been spent therein, and who might be unable to readjust themselves to their altered surroundings. Mere reduction in the price of the commodity dealt in might be dearly paid for by the ruin of such a class and the absorption of control over one commodity by an all-powerful combination of capital.

Likewise with Justice Earl Warren, who wrote in Brown Shoe:

But we cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization.

Each of these statements flagrantly offends Chicago school economic orthodoxy (and Warren is simply wrong about Congress’s desire to avoid higher prices for consumers). But the underlying sentiments are conservative through and through: preference for and protection of the small and local through the decentralization of power is a first principle for the conservative. Edmund Burke, whom Assistant Attorney General Slater quoted at her recent swearing in, put it this way:

To be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country, and to mankind. The interest of that portion of social arrangement is a trust in the hands of all those who compose it; and as none but bad men would justify it in abuse, none but traitors would barter it away for their own personal advantage.

Here we have a tradition—on both the Left and the Right—of recognizing danger in concentrated economic power, refusing to excuse it by appeals to efficiency and economic gain, and calling on the federal government to restrain it. In our time, the idea that antitrust law is essential to preserving democracy predominantly is associated with the Left and the progressive movement. While the conservative may justifiably roll his eyes at the grandiloquent rhetoric that often accompanies these claims, the fact is that such a concern has a long pedigree on the Right as well. 

Where Peckham, Douglas, Warren, Pitofsky, and our progressive contemporaries go wrong, however, is in their preferred manner of pursuing these admittedly good ends. Their extremism lies less in their diagnosis and more in their prescription. Concentrated economic power is, in fact, a threat to democracy—on that we agree. But the solution is not to put more power in the hands of unelected judges. And so we are left with two competing goals: the prevention of concentrated economic power through enforcement of the antitrust laws, and the avoidance of consolidated federal power that would result from allowing judges to engage in political decision-making.

How, then, is a conservative to resolve this tension, to achieve the political goals of antitrust without requiring judges to make political decisions?

Conservatives should advocate for interpreting and applying the antitrust laws in a way that preserves the priority of consumer welfare as the ultimate goal, but with an understanding of consumer welfare that actually focuses on consumers and an approach to legal and factual antitrust analyses that prioritizes avoiding false negatives over false positives.

Conservatives should advocate for interpreting and applying the antitrust laws in a way that preserves the priority of consumer welfare as the ultimate goal, but with an understanding of consumer welfare that actually focuses on consumers and an approach to legal and factual antitrust analyses that prioritizes avoiding false negatives over false positives. In this way, judges will remain more faithful to the actual text of the antitrust laws and avoid wading into political questions—all without frustrating the political goals of antitrust.

Consumer Welfare Properly Understood

Among all the purposes of the antitrust laws identified by their drafters and supporters, consumer welfare, properly understood, is best suited to serve as the neutral principle that judges may apply while remaining faithful to the Constitution’s separation of powers.

Bork’s definition of consumer welfare may be one of the greatest sleights of hand in modern legal scholarship. While the phrase, “consumer welfare” brings to mind the pursuit of what’s best for your average citizen or shopper, Bork’s tortured definition actually requires calculating and offsetting the benefits and harms to all market participants, not just those we colloquially think of as “consumers.” The result is a version of the antitrust laws that can excuse almost any merger or monopolization, so long as the benefits received by some market participants exceed the costs imposed on others—often a wealth transfer from the most economically vulnerable consumers to big businesses and their shareholders.

This is absurd on its face, and conservatives should not hesitate to reject it as an insult to our intelligence. Instead, we should adopt consumer surplus, the net benefits to real consumers, as the definition of consumer welfare. Of course, not all markets have “consumers” in the same way. There are labor markets, business-to-business markets, and antitrust cases dealing with monopsony—buyer power. In these contexts, what we mean by “consumer” is that class of persons whose business is courted by the alleged monopolist, their trading partners. The conduct at issue in an antitrust case should be evaluated through the lens of how it affects their welfare.

Preventing monopolies and concentrated corporate power, protecting small businesses, and shielding democracy from the influence of big business are all valid and conservative goals—but they are not tasks that the Constitution permits us to place in the hands of judges to pursue in the abstract and at their own discretion. Doing so would require the court to weigh social, political, and economic equities among competing constituencies without any grounding principles or guidance. To give such power to the judicial branch would create the very consolidation of political power that the Framers sought to prevent.

While Bork correctly identifies the need for judges to have a neutral principle by which to interpret and apply the antitrust laws, his definition of consumer welfare fails the test by pitting producer welfare against consumer welfare. By calling on judges to weigh and compare the economic benefits to competing constituencies and to substitute legal reasoning with economic speculation, Bork’s version of consumer welfare, ironically, comes dangerously close to the very kind of political decision-making he claims to oppose. Perhaps even worse, it implicitly requires deference to economists in how we decide legal questions.

By calling on judges to weigh and compare the economic benefits to competing constituencies and to substitute legal reasoning with economic speculation, Bork’s version of consumer welfare, ironically, comes dangerously close to the very kind of political decision-making he claims to oppose.

The more accurate definition of consumer welfare as consumer or trading partner surplus offers the benefit of avoiding the need for political judgments or weighing benefits between two competing constituencies, while actually better serving antitrust’s political goals by putting consumers—people—before corporations.

Consumer welfare is also simply the best answer to the question, “What is competition for?” 

The debate over what competition means too often ignores the teleological inquiry. In order to say what something is, we must be able to say what it is for, what is its telos or end. Competition is best assessed through the lens of consumer welfare because the entire point of encouraging competition is to improve outcomes for consumers—citizens. Even if one is to say that improved outcomes for consumers necessarily includes freedom from oppressive economic powers and the political harms they may inflict, this still makes consumer welfare the ultimate end of competition. The question then is simply to what extent and in what ways the courts are empowered to pursue such ends.

Textualism and the Common Law

Next to the legislative history and congressional intent behind the antitrust laws, little attention has been paid to the part of the statute conservatives believe should take primacy in judicial decision-making: the text. 

Prof. Daniel Crane has observed that, while courts are not ignorant of the plain meaning of the antitrust statutes, they simply “refuse to follow it.” He writes:

The courts have not merely abandoned statutory textualism or other modes of faithful interpretation out of a commitment to a dynamic common-law process. Rather, they have departed from text and original meaning in one consistent direction—toward reading down the antitrust statutes in favor of big business. … It is no exaggeration to say that not one of the principal substantive antitrust statutes has been consistently interpreted by the courts in a way faithful to its text or legislative intent, and that the arc of antitrust antitexualism has bent always in favor of capital.

Crane says courts have instead “treated the antitrust laws as a virtually unbounded delegation of common-law powers.”

There is some basis to treat the Sherman Antitrust Act as codifying a federal common law approach. Sen. Sherman himself claimed that the act “does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government.” 

Conservatives should agree with Sherman, not because it was his intention at the time, but because his view is the most reasonable interpretation for a statute that applies an existing area of common law to the federal government with so few details provided in the text. The operative provisions of Section 1 and Section 2 of the Sherman Antitrust Act are one sentence each and hinge on the undefined terms “restraint of trade” and “monopolize.” 

Even if one were to attempt a purely textualist approach to interpreting the Sherman Act, the search for the original public meanings of “restraint of trade” and “monopolize” would simply lead you back to the pre–Sherman Act common law tradition.

That said, antitrust law today is more than the Sherman Act. As previously noted, the subsequent antitrust statutes were all enacted in response to the Court’s interpretation of the Sherman Act. Whereas the Sherman Act can be read as Congress declaring, “We shall have federal antitrust common law,” the Clayton, Federal Trade Commission, Celler-Kefauver, and Robinson-Patman Acts are all far more specific and clearly written to strengthen antitrust enforcement in places where Congress believed the Court’s interpretations had diverged from legislators’ intentions.

Because of this, antitrust is neither purely common law nor purely statutory; it is a hybrid system of common law tradition and detailed statutory schemes. The Sherman Act establishes that there will be federal common law governing competition and restraints of trade, granting courts the authority to develop those concepts in the context of the cases and controversies brought before them. Congress then augments the Court’s rulings by passing additional antitrust statutes—ones which are more specific and detailed.

To respect Congress’s legislative prerogative, the courts should have thereafter endeavored to interpret the Sherman Act in a way that is consistent with the more specific guidance provided by the later enacted laws—particularly the Clayton and Celler-Kefauver Acts. What follows is an attempt to answer the question what that would look like.

Antitrust Policy Reconsidered

In addition to making consumer welfare (defined as consumer surplus) the measure of competition, a conservative approach to antitrust law that seeks to follow congressional guidance will be more concerned with avoiding false positives than false negatives. While modern economics may insist that false positives are more costly than false negatives, Congress’s approach to the antitrust laws does not reflect that belief. This is nowhere more explicit than in the Clayton Act’s repeated use of the phrase “may be to substantially lessen competition, or to tend to create a monopoly.” As former attorney general Bill Barr has observed, “It is much harder to use antitrust laws to undo entrenched and concentrated power than it is to stop ongoing and future anticompetitive conduct.”

There was some indication as early as the Sherman Act debates that many members of Congress at the time believed that efficiency should not excuse even a fairly obtained monopoly, that size alone was in fact a danger. By the time of the Clayton and Celler-Kefauver Acts that conclusion was inescapable. Conservatives should therefore advocate for legal and factual antitrust analyses that are less deferential to claimed efficiencies and defenses of mergers and anticompetitive conduct. 

Shifting our antitrust enforcement mindset from one concerned about overdeterrence to one more concerned about underdeterrence provides another neutral principle for courts and enforcers to apply the antitrust laws in a way that is faithful to the text and fulfills the political purposes of antitrust without entrusting to judges the act of political decision-making. 

The following are topics within antitrust that merit reconsideration as part of this proposed conservative approach. 

The Role of Economics

Antitrust law involves the oversight of markets and economic power, and so economic analysis will always play an essential role in its application. But its role must be that of servant, not master. The Right has too often fetishized economic analysis, as if economic experts in ivory towers can better manage the economy than economic experts in regulatory agencies. Conservatives must rehabilitate the understanding of the law as primarily an exercise in law and policy and morality, not in economics. Economics is a tool that can be used to achieve ends, but it cannot identify or defend what the ends should be. 

The Right has too often fetishized economic analysis, as if economic experts in ivory towers can better manage the economy than economic experts in regulatory agencies. Conservatives must rehabilitate the understanding of the law as primarily an exercise in law and policy and morality, not in economics.

Moreover, it is not a scientific tool; it is a tool of educated guesswork, one that depends upon various assumptions and caveats, all of which can and often is rendered moot by marketplace realities and “facts on the ground.” Economics may inform the factual and legal analyses of an antitrust question, but it is not a system of thought that can be relied upon to dictate outcomes or set policies. Even Bork acknowledged the limits of economics in antitrust enforcement. He explains: 

The economist builds a pure model in order to clarify thought; such models are indispensable for policy analysis, but they are not prescriptions for policy. They leave out too much. A determined attempt to remake the American economy into a replica of the textbook model of competition would have roughly the same effect on national wealth as several dozen strategically placed nuclear explosions.

For these reasons, Bork writes, “the judge, legislator, or lawyer cannot simply take the word of an economist in dealing with antitrust, for the economists will certainly disagree.” Sadly, this advice was not heeded, and antitrust law today has strayed into exactly the kind of “economic extravaganza” that Bork warned against. One of the first tasks for conservatives dedicated to reforming antitrust law must be to reverse this trend.

Efficiency

An obsessive preoccupation with efficiency is deeply unconservative. Soviet housing projects were “efficient.” But the conservative pursues beauty, excellence, and virtue, not mere efficiency. Conservatives of course believe in conservation, and our care and affection for society calls us to a prudent stewardship of resources. Waste is bad. But a Scrooge-like accounting for every dime that might be saved is incompatible with a humane way of living—especially when we are misled as to whom will see the savings.

Conservatives should insist that antitrust analysis credit only efficiencies that: (1) are realized in the same market as the harms they offset; (2) can only reasonably be achieved through the conduct or transaction at issue; (3) are nonspeculative (i.e., measurable in some way and likely to be realized); and (4) will directly and predominantly accrue to consumers. Sen. Sherman wisely observed that, “It is sometimes said of these combinations that they reduce prices to the consumer by better methods of production, but all experience shows that this saving of cost goes to the pockets of the producer.” If the end of competition is consumer welfare, harm to that welfare cannot be excused by benefits to others.

Innovation

Innovation—technological, economic, political—has been a boon to mankind in many cases, and the ability for firms to pursue innovation to maintain competitive markets must be protected. And yet, an undue preoccupation with innovation—such as innovation at any cost, or so-called “permissionless innovation”—is a progressive impulse, not a conservative one. For the conservative, innovation is a means to an end, a method for achieving excellence and pursuing human flourishing that exists within a larger legal and moral framework. “Move fast and break things” is antithetical to the conservative’s considered preservation of custom and tradition and our commitment to the rule of law. We do not celebrate the inexorable forward march of progress precisely because not all that is innovative is good—let alone legal.

And yet, an undue preoccupation with innovation—such as innovation at any cost, or so-called “permissionless innovation”—is a progressive impulse, not a conservative one.

In antitrust law, we seek to protect innovation that benefits consumers, whether through higher quality, lower prices, or some other cognizable form. A merger or course of conduct challenged under the antitrust laws is often defended on the grounds that it is necessary for innovation. Sometimes this is true, but often the claim is self-serving. Conservatives should receive them with an appropriate skepticism.

Parties to a merger often argue that greater scale is necessary for innovation. These claims should be carefully examined, and precise detail as to the nature of the innovation sought should be required. For example, is the sought-after innovation something that can only or most effectively be attained through the elimination of competition (such as through a horizontal merger)? Analysis of these kinds of claims should balance the speculative gains of faster or greater innovation with the loss of competition. The latter is certain, the former less so. Some of the greatest, world-changing innovations of our time have come not from big businesses benefitting from scale, but from startups in the proverbial (or actual) garage.

Direct Evidence

Many who know little about antitrust law believe that its inquiry centers on market share and that a monopolist is a firm with a high market share. The reality is more nuanced. Monopoly power is defined as the ability to control prices or output. This can be demonstrated through direct evidence. Market share is an alternative by which courts infer monopoly power in the absence of direct evidence. But this concept has been turned on its head, such that a market share short of one that justifies an inference of monopoly power is often taken to support the conclusion that there is an absence of monopoly power. This is a logical fallacy.

Antitrust analysis should reemphasize the centrality of direct effects to determine monopoly power, especially in markets where unique features (such as network effects and barriers to entry) can mean that market shares understate a firm’s power over its rivals and customers.

Reexamining Case Law

Understanding consumer welfare to mean consumer surplus and applying the approaches outlined above may have resulted in different outcomes for many important Section 2 cases in recent decades. Conservatives should revisit and reconsider the holdings of these cases and develop investigatory and litigation strategies for securing reversals of decisions found to be detrimental to competition rightly understood. 

Antitrust law would also benefit from comprehensive merger retrospectives, particularly for mergers that the government attempted to block but failed, to see whether the court’s analysis held up in the aftermath. Courts have long recognized that Section 7 of the Clayton Antitrust Act is designed to stop harm to competition in its “incipiency.” This is obvious from the text of the statute, which prohibits mergers and acquisitions where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” The plain meaning of Section 7 is clear that a merger should be blocked if there is reasonable likelihood that it will meaningfully reduce competition. A greater level of certainty should be required to excuse a merger that eliminates competition than to condemn it. Yet at times it has seemed that these burdens are reversed.

Legislative Reform

As an initial matter, legislators should recognize that the consumer welfare standard, being a limitation on the ability of judges to engage in political decision-making, is a restriction on courts, not Congress. Within the limits of the Constitution, Congress is free to balance political equities in whatever way it deems best.

As for specific antitrust reforms, there are many possibilities. One that could be immediately helpful would be to reenact a modern version of the Expediting Act so that important antitrust cases can more quickly reach the Supreme Court for review, providing greater clarity and certainty for market participants and allowing the law to develop without delay as markets and technologies change.

These are only some of the possibilities for modernizing antitrust law for the 21^st century. Further discussion and experience will undoubtedly lead to others, and it is my hope that a new generation of scholars, practitioners, and leaders will be inspired to take up the challenge.

This is an essay adapted from remarks delivered at “A Conservative Vision for Antitrust” in Washington, DC, on May 1, 2025.